Thursday, February 11, 2010

Explaining Justice Thomas's Reticence

By Mike Dorf (Updated with addendum at the end)

In my latest FindLaw column, I use the occasion of a recent University of Florida Law School speech by Justice Clarence Thomas as an occasion for talking about the "noble lie" of formalism in the law. Here I want to raise a largely unrelated issue: Why does Justice Thomas almost never ask questions from the bench?

During the Q&A session, he gave what I thought at first was a joking answer in response to a question of what a lawyer can say to convince him that the lawyer's client should win the case. Justice Thomas said that it would help "if my colleagues would let me talk." I took the line to be a joke because, of course, his colleagues do "let" him talk; he simply chooses not to talk in the vast majority of cases. The usual question is why not.

Based on my admittedly unscientific methods, I think that by far the most common hypothesis among people at least loosely familiar with the Court's work is that Justice Thomas doesn't ask questions because he doesn't want to embarrass himself as not up to the job. A close second is that he's nervous talking in public. Yet the evidence of the University of Florida speech pretty clearly rules both of these hypotheses out. Regardless of how well prepared he was for the job when the first President Bush nominated him in 1991, nearly two decades on the bench have obviously brought Justice Thomas up to speed. That's evident in his opinions but also in the speech itself, in which he displayed a level of comfort with a wide range of doctrines and issues. Surely he would be able to ask probing questions of lawyers in most cases.

So, is it possible that he doesn't have any questions? That seems unlikely too. Even acknowledging that, as the most conservative member of the Court,Justice Thomas finds fewer cases difficult than many of his colleagues do, at least half of the cases the Court decides do not have a clear ideological valence and raise hard legal questions. One would expect questions from Justice Thomas in these cases from time to time, if for no other reason than to relieve boredom.

Thus, although I'm not fully satisfied with this explanation, I fall back on the possibility that Justice Thomas wasn't joking, or at least wasn't entirely joking: Perhaps he really feels like his colleagues won't let him get a word in edgewise. That's not quite as outlandish as it may sound, given the unstructured nature of oral argument questioning, in which there is no queue. I consider myself anything but shy; yet I quite dislike going on the sort of television or radio program in which there is no moderator telling me when it's my turn but I must instead jump in and cut someone else off. Call it politeness, perhaps, or something else, but I think it's worth wondering whether a somewhat different format--in which the justices took turns asking questions, say--might produce a much more loquacious Justice Thomas.

Update: I received an email from Prof Lance McMillan of John Marshall Law School, who reminded me that on prior occasions (including in his book and in a speech last fall) Justice Thomas has said that he thinks judges should do more listening and less questioning, or "debating" with the lawyers. Justice Thomas contrasted oral arguments before the Supreme Court with the oral arguments he had as a lawyer for Missouri early in his career, in which the bench allowed the lawyers more time to talk. For Justice Thomas, this is part of a broader theme of civility.

I must say that I find this explanation not fully satisfactory. Justice Powell was also a Southern gentleman but he asked his share of questions at oral argument. Now perhaps the difference is that Powell mostly served in an era of less questioning, and less aggressive questioning (i.e., the pre-Scalia era) and so Justice Thomas feels that given the current level and nature of questioning, there's simply no room to add his questions. I think that could explain a certain degree of reticence but to my mind it doesn't explain complete silence for case after case.

9 comments:

I've often wondered about the same question. Part of the answer may lie in his temperament; not all sharp legal minds are inclined toward public, extemporaneous discussion. I'm always surprised by at least one instance each year in which a top grade goes to a student who has lurked at the back of the class silently all semester (though this tends to be the exception not the rule--most such students don't do so well, at least in my experience).

Path-dependency may also provide part of the explanation. At the outset of his tenure, Thomas may have been outclassed in terms of skill and unused to public appearances, and grown used to remaining silent at argument. And while he's likely gotten past those two issues, he may still be stuck in the same pattern regarding speaking at oral argument. Nor do I think the Florida event shows that he's overcome any psychological block he may have to asking questions at argument. Psychological issues are often setting-dependent; someone may be gregarious around an audience of law students and professors but still taciturn in the company of colleagues.

Final thought: I recall reading that Scalia's elevation to the bench in the 80s changed the culture of Supreme Court argument from one that was relatively lax and collegial about questioning to one in which a hot, confrontational bench was the norm. If this is true, it suggests that Thomas' conduct may not be so strange in comparison to historical judicial practice, even though it's out of step with the modern Court.

Another part of the explanation -- albeit only part -- might be found in an admission Justice Thomas made more than once in little group chats that I got to be party to in the late 1990s, when he used to come often to Kansas. The Justice said more than once in these chats that he pretty well had his mind made up in all or nearly all cases well before oral argument. He expressed skepticism about the prospect that it might be otherwise with his colleagues. If there's anything to this, it might constitute good news and bad news. The bad news would be the predictable worry over 'closed-mindedness' -- though we'd have to remember that the mind might well have been much more open prior to reading of the briefs. The good news would be the candor, and the coordinate refusal to gas up the room for the audience -- though here we'd want to remember that the 'show' that is oral argument performs more legitimating functions than merely affording another opportunity to discourse.

I would be interested if anyone has studied the behavior of previous Supreme Court justices, particularly those who differed in some obvious way (race, religion, ideology) from the majority of the Court at the time they joined. I, for example, stopped going to faculty meetings because I found the prevailing liberal, elitist ideology depressing and it was simply a waste of time to keep saying so. Thomas can't, realistically speaking, fail to attend oral argument: is his effective nonparticipation an alternate way of expressing an equivalent disapproval?

Isn't Justice Thomas's 1/9th voting power significantly more than a faculty member's, at least on the average question; aren't the questions Justice Thomas's collective debates slightly more consequential to the world at large; and wouldn't the people you're referring to, if they were truly liberal, be at least *somewhat* interested in your dissent [?]

3. Depends on the faculty member. There is a significant difference in that we have a Dean who makes many decisions regardless of the faculty. But it is possible Supreme Court justices are actually less open-minded than faculty members, so who knows?